AM JAD ALI SAHITO, J. Through instant criminal appeal, the appellant has challenged judgment dated 23.11.2023 passed by learned Special Judge, Anti-Corruption (Central) Hyderabad in Case No.06 of 2013 emanating from crime No.01/2013 registered at PS FIA Sukkur for the offences punishable under sections 409, 420, 468, 471, P.P.C read with section 5(2) of Prevention of Corruption Act-II of 1947, whereby the appellant was convicted for the offence punishable under section 409, P.P.C to undergo R.I. for seven years and fine of Rs.200,000/-; in default whereof to suffer S.I. for three months; under section 471 P.P.C to undergo F.I. for two years with fine of Rs.100,000/-; in default whereof to suffer for 45 days. Appellant was also ordered to deposit the embezzled amount of Rs.1,082,500/- in NCHD Kashmore in favour of poor women who were entitled to receive the same as per project of 2011 in NCHD Kashmore, failing which he has to undergo S.I. for one year. However, benefit of section 382-B, Cr.P.C. was extended to the appellant.
2. The brief facts of the prosecution case are that an enquiry bearing No.61/2011 was conducted against the appellant, wherein it was established that he being District Program Manager Literacy in National Commission for Human Development (NCHD), Kashmore has committed misappropriation of Rs. 1,082,500/- in the account of one month salary of trainees of NCHD Kashmore and one private person by making changes in ledgers/pay rolls in the GPO, Jacobabad in respect of Project of Benazlr Bhutto Shaheed Youth Development Program (BBSYDP) initiated for women of backward/flood affected areas to teach the sewing and stitches to the women for a period of March, 2011 to June 2011. Hence, this case.
3. In order to establish its case, the prosecution has examined pw-1 complainant Mazhar Din District General Manager NCHD Gliotki; PW-2 Abdul Samee District General Manager NCHD Jacobabad; PW-3 Zafrullah Finance Admn Manager in NCHD Jacobabad; PW-4 Hakim Ali Head Post Master Kandhkot; PW-5 Qaimdin Clerk Post Office Kashmore; PW-6 Abdul Ghaffar; PW-7 Ali Sarwar Shah Junior Clerk; PW-8 Muhammad Bachal Post Master Sub-post Office Kashmore; PW-9 Shabbir Ahmed Post Master GPO Jacobabad; PW-10 Muneer Ahmed; PW-11 Ghulam Mujtaba Assistant Finance and Adnin Manager at Kashmore; PW-12 Muhammad Hassan Post Master Sub Office GPO Ghouspur and PW-13 Afroze Ahmed I.O. of the case. The prosecution witnesses have also produced numerous documents. Then the prosecution closed its evidence side.
4. Statement of appellant was also recorded in terms of section 342, Cr.P.C., wherein he has denied the allegations levelled against him by claiming his innocence and produced photo copies of documents. However, neither he examined himself on oath nor led any defence.
5. After observing all formalities including recording of statement and hearing the learned counsel for parties, the learned trial Court convicted and sentenced the appellant/accused in the manner as stated above.
6. Learned counsel for the appellant/accused contended that the appellant is innocent and he has been falsely implicated in the instant case; that the alleged incident is said to have taken place in the year 2011; however, instant FIR has been lodged in the year 2013 after long delay without plausible explanation; that the appellant had nothing to do with the alleged offence as he has not committed any act of misappropriation or negligence in respect of stipend of trainees initiated for women of backward/flood affected areas to teach the sewing and stitches to the women in a Project of Benazir Bhutto Shaheed Youth Development Program (BBSYDP), rather the appellant has served his responsibilities in accordance with his job .description; that under the said program District General Manager (DGM) and District Finance and Administration Manager has to deal with Government Funds and that the appellant was not posted on the said posts though he was posted as District Program Manager Literacy despite such fact, the appellant was malafidely involved in the instant case; that neither account was opened in the name of appellant nor any transaction of stipend amount was made in any account of the accused in any bank or post office; that as per Departmental Inquiry Report three account holders namely Ali Sarwar Shah, Abdul Ghaffar and Rafique Mirani were used in amount transfer; however, only the appellant was held responsible despite fact that he had nothing to do with it; that those account holders were not made part of any inquiry notwithstanding the entire case is based on these three fake accounts; that initially Mazharuddin, District General Manager NCHD lodged FIR bearing crime No.339/2011 at PS A-Section Kandhkot against appellant and three others, which was transferred to FIA for want of jurisdiction by the competent Court and then Inquiry No.61/2023 was initiated by FIA and present crime was lodged against the appellant only in order to save the skin of real beneficiaries of the embezzled amount and this very fact for non-involvement of said other persons in the instant case shows clear mala fide on their part; that though the offence, with which the appellant is involved, was in respect of misappropriation in the funds to be utilized in stipend of trainees initiated to teach the sewing and stitches to the women in a Project but the Investigating Officer has not recorded the statements of any single trainee during investigation; that no Call Data Record or cell number of the appellant was produced before the trial Court in order to show any conversion in respect of alleged misappropriation of funds made by the appellant with anyone; that there are material contradictions in the evidence of prosecution witnesses as well as evidence; that despite of these essential facts and grounds, learned trial Court has not considered the same and passed the impugned judgment. Concluding his submissions, learned counsel for appellant contended that the case of prosecution afterthought because the misappropriation of funds, if any, therefore the impugned judgment is not sustainable in the eyes of law and is liable to be set aside. He, therefore, prayed for acquittal of the appellant.
7. On the other hand, learned Assistant Attorney General for Pakistan has contended that the accused is involved in misappropriation of huge amount and the prosecution has fully established its case by adducing strong evidence against him, as such, the impugned judgment passed by learned trial Court does not require any interference by this Court. He, therefore, prayed for dismissal of instant appeal.
8. I have heard arguments advanced by both the sides and with their able assistance, have also gone through the record as well as impugned judgment passed by the learned trial Court.
9. The prosecution has alleged that the appellant being District Program Manager Literacy NCHD Kashmore committed misappropriation/embezzlement to the tune of amounting to Rs.1,455,000/-; out of which Rs.372,500/- was saved by timely action and the remaining amount of Rs.1,082,500/- the appellant has misappropriated from the amount of trainees of NCHD Kashmore by making changes in ledgers/pay rolls in the GPQ, Jacobabad by himself depositing and withdrawing a huge amount of one month salary of the trainees in the NCHD employees and one private person in the project of Benazir Bhutto Shaheed Youth Development Program initiated for women of backward/flood affected areas to teach the sewing and stitches of these women for the period of March-2011 to June-2011. In this regard, an enquiry bearing No.61/2011 was conducted by Federal Investigation Agency, Circle Sukkur and as a tenth whereof, an FIR bearing crime No.339/2011 was registered at PS A-Section Kandhkot, which was transferred to the FIR Circle Sukkur for want of jurisdiction, as such, instant case was lodged.
10. Prosecution has examined as many as thirteen witness before the learned trial Court. The complainant Mazhar Din, who was General Manager in National Commission for Human Development during his evidence stated that "I was given instruction by Project Director for opening of accounts of enrolled women through Bank of respective post offices so that stipend funds might be paid. On the basis of said instruction, I directed to concern Manager Abdul Salam Aril posted at Kashmore alias Kandkot for opening of accounts of enrolled/trainee woman for payment of stipend amount. Thereafter he opened accounts in various Post Offices of different nearby Talukas after having meeting with Incharge of GPO Post Office of Jacobabad because Head was sitting at Jacobabad not at Kashmore Kandkot." In his cross-examination, he deposed that "The District Program Manager Abdul Salam received the said five cheques for the month of May and June 2011 and said amount was to be disbursed among the trainees/trainers. The said cheques were deposited along with roster/list by accused Abdul Salem Arif in GPO Jacobabad. It is fact that as per SOP it is not responsibility of accused being DPML to receive the cheques and look after the finance. I do not know who received cheques of second installment from our office. It is fact that the said cheques were in the name of DFAM. I initially submitted complaint to local police which was subsequently transferred to FIA. I directly not lodged the FIR at FIA. I do not know the contents of FIR registered by FIA. It is a fact that no any signature was taken by 10 of FIA on FIR registered by him. It is a fact that I lodged FIR at local police being 339/2011 of PS 'A' Section Kandhkot. The said FIR was read over to me by the police. It is a fact that said FIR reveals that an amount of Rs.1455000/- was misappropriated. It is a fact that four accused namely (1) Abdul Ghaffar Noonari, (2) Ali Sarwar Shah Quality Controller, (3) Muhammad Rafique Miran Literacy Coordinator and present accused were nominated in the said FIR It is a fact that cheques produced by me shows that list of trainees was attached with cheques. It is a fact that list is to be verified by DGM."
11. The most important witness namely Qaimdin, who was Clerk at Post Office Kashmore stated in his evidence that; "On 29.09.2011 I was posted as Clerk in the Post Office at Kashmore. In the year 2011, NCHD Kashmore/Kandkot started a project assigned by Sha heed Benazir Bhutto Youth Development Program for the purpose of training to the women. The training period of trainees was for four months. NCHD authority approached to Divisional Superintendent GPO Sheeren Zaman for opening the accounts of trainees for receiving the stipend and on the direction of Sheeren Zaman accounts of the trainees were opened for receiving the stipend in various Post Offices including Kashmore. On 29.09.2011 accused present in court namely Muhammad Aslam Arif came along with account holder namely Abdul Ghaffar for the purpose of receiving amount of Rs.10,82,500/- and so also met with Post Master Gul Hassan Chachar who contracted Rao Mohammad Ameen Sr. Post Master as amount was huge and Sr. Post Master instructed Mr. Gul Hassan to obtain authority from the accused for withdrawal of the amount. The accused issued authority letter in favour of Abdul Ghaffar account holder in our office then the amount was given to authority holder. I produce such authority letter as Ex.11/A and say it is same." However, this witness during course of his cross-examination deposed that; "It is correct to suggest that misappropriate amount of Rs.10,82,500/- was deposited in the account of Abdul Ghaffar Noonari.
It is correct to suggest that Abdul Ghaffar Noonari is not accused in the present case. It is a fact that the said program was only for four months. 245 accounts of trainees were opened in the Post Office. As per list provided by NCHD Post office is bound to pay Rs.2500/- to each trainee. It is fact that authority letter Ex.11/A does not reveal the date."
12. Prosecution has also examined Abdul Ghaffar, Ali Sarwar Shah as witnesses in the instant case, who were nominated in the first FIR with the allegation of misappropriation of amount.
13. Another important prosecution witness namely Muhammad Hassan, who was working as Post Master at Post Office Kandhkot, who during cross-examination has deposed that "For opening of account in the post office personal appearance of the account holder and copy of his CNIC is necessary."
14. The Investigating Officer of the case PW Afroze Ahmed during course of cross-examination has deposed that; "I have conducted the entire investigation for about 3/4 months. It is correct to suggest that no any account was opened in the name of accused in Post Office. It is correct to suggest that there was no any transaction of stipend amount was made in any account of the accused in any bank of post office... It is correct to suggest that I have not mentioned in my evidence any specific number or name of embezzled account... I have not recorded the statement of any single trainee during investigation... It is correct to suggest that I have not produced the CDR in respect of the cell number of accused so also Ali Sarwar Shah."
15. In the instant case, the allegation of misappropriation of an amount is involved which is serious offence. In case of fraud and misappropriation of public money, the responsible person cannot be let free or exonerated. The prosecution case is based primarily upon the evidence of witnesses namely Muhammad Hassan, who was working as Post Master at Post Office Kandhkot, Qaimdin, who was Clerk at Post Office Kashmore and Abdul Ghaffar, Ali Sarwar Shah. However, from perusal of record clearly reflects that there is no direct evidence available on the record, which could connect the appellant with the commission of the crime as the evidence adducted by PWs Abdul Ghaffar and Ali Sarwar Shah cannot be relied upon against the appellant for the reasons that they were nominated as accused in the first FIR bearing crime No.339/2011 registered at PS 'A' Section Kandkot with the same allegation of misappropriation of amount including the appellant. Whereas, PW Qaimdin, who was Clerk at Post Office Kashmore stated in his evidence that since the NCHD authority approached to Divisional Superintendent GPO Sheeren Zaman for opening the accounts of trainees for receiving the stipend and on his direction, the accounts of the trainees were opened for receiving the stipend in various Post Offices including Kashmore. He also stated in his evidence that on 29.09.2011 appellant came along with account holder namely Abdul Ghaffar for, receiving amount of Rs.10,82,500/- from whom an authority letter, issued by appellant, was obtained for withdrawal of the amount and then account holder was given the amount. However, this witness during course of his cross-examination clarified that, the misappropriated amount was deposited in the account of Abdul Ghaffar Noonari and that per list provided by NCHD Post office is Wound to pay Rs.2500/- to each trainee. Nevertheless, the said account holder, who withdrawn the amount, is not an accused in the present case. Further, this witness also confirmed that the authority letter produced does not bear the date. While the other witness namely Muhammad Hassan, who was working as Post Master at Post Office Kandhkot also clarified in his evidence that the appearance of account holder and copy of his CNIC is necessary. The crux of the testimonies of these two important witnesses, who belong to Post Office wherefrom the misappropriated amount was withdrawn is that they do not implicate the appellant. So far the evidence of complainant Mazhar Din is concerned, he stated that the appellant deposited along with roster/list in GPO Jacobabad and confirmed that as per SOP it is not responsibility of appellant being DPML to receive the cheques and look after the finance and the same is to be verified by DGM.
16. It is very important to note here that the amount which was to be disbursed to the trainees of the Project, I.O. has failed to record their statements in order to strengthen the version of prosecution regarding alleged misappropriation on the part of appellant as to whether they were given stipend, amount or not: Mere saying that the appellant has misappropriated amount would not be sufficient as it is the duty of prosecution to establish its case from all four corners. The Investigating Officer during his evidence has also confirmed that there was no account in Post Office opened in the name of appellant nor any transaction of stipend amount was made in any account of the appellant in Bank or Post Office. Even I.O. has not collected any documentary proof regarding alleged misappropriation nor recorded the statement of any of the trainees during investigation. In order to confirm involvement of the appellant in the alleged offence, the I.O. has not collected Call Data Record of Cell number of the appellant for ascertaining the truthfulness.
Furthermore, non-association of Abdul Ghaffar Noonari, Ali Sarwar Shah Quality Controller, Muhammad Rafique Mirani Literacy Coordinator as accused in the instant case, though who were nominated in the earlier FIR as stated above, have also dented the prosecution case.
17. I have noted that in the instant case, the allegation levelled against the appellant are under the thick clouds of doubt. However, the learned trial Court while convicting the appellant has not adopted a safest way, which glorifies the true spirit behind the safe administration of criminal justice despite fact that there are certain discrepancies in the evidence of prosecution witnesses despite it is well settled principles of criminal administration of justice that no conviction can be awarded to in accused until and unless reliable, trustworthy and unimpeachable evidence containing no discrepancy casting some cloud over the veracity of prosecution story is adduced by the prosecution. As such, I am of the considered view that prosecution has failed to establish the guilt of appellant at home without reasonable doubt and any doubt arising in the case of prosecution is to be resolved in favour of the accused as burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. However, as discussed above, in the present case the prosecution has failed to prove its case beyond any reasonable shadow of doubt.
18. The upshot of the above discussion the appeal is allowed and the impugned judgment was set aside vide short order dated 29.01.2024. Appellant was acquitted of the charge. He shall be released forthwith if not required in any other custody case. These are the reasons for my short order dated. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.